The Legal Debate Over Bulletin Boards
Is the freewheeling world of computer bulletin boards threatened by the seizure of some systems by investigators seeking evidence of criminal activity?
Mitch Kapor, founder and former head of Lotus Development Corp., believes that it is, and he carried that message a few days ago to members of the High Technology Crime Investigation Assn. meeting in Newport Beach.
The audience included local, state and federal investigators, prosecutors and corporate security chiefs from California to New York, and they didn’t seem convinced.
Kapor, now the chairman of Cambridge, Mass.-based ON Technology, co-founded the Electronic Freedom Foundation last year to promote constitutional protection for computer telecommunication.
In a four-hour panel discussion with prosecutors, Kapor and Mike Godwin, the foundation’s attorney, called for law enforcement authorities to change their methods.
Law enforcement’s position was defended by a pair of prosecuting attorneys with long experience with computer crime: Gail Thackeray, deputy county attorney in Maricopa County, Ariz., which includes Phoenix, and Donald G. Ingraham, assistant district attorney in Alameda County, Calif., which includes Berkeley and Oakland.
Unfortunately, neither side was able to buttress its arguments with factual details because most of the cases that spawned the foundation and its concerns are pending and the evidence has not been made public.
Perhaps the most remarkable aspect of the discussion was not their disagreements, but how many issues on which the four agreed.
“I don’t like hackers any more than you do,” Kapor told the law enforcement group. He is irked that the foundation has been tagged as a defense fund for criminal computer hackers who break into systems, steal or damage data and commit other crimes.
Kapor revealed that the foundation’s own computer bulletin board system had been hacked into illegally by a “kid.” The intruder’s identity was learned and he was warned, but the foundation didn’t consider seeking criminal prosecution, Kapor explained.
If the foundation has no sympathy for computer criminals, it is concerned with innocent users of computer bulletin boards having their messages to each other come under police scrutiny and with system operators being put out of business when their equipment is seized as evidence because a few users are suspected of having used it to commit crimes.
The foundation also fears that the uncensored and sometimes socially and politically outrageous electronic discussions on some bulletin boards are being used by some law enforcement agencies as an excuse to seize equipment and put the bulletin boards out of business even though no actual crimes have been committed.
An estimated 40,000 bulletin boards exist, the vast majority operated as a hobby by their owners and without charge to their users. All it takes to set up such a system is a computer with a hard disk, a modem, a telephone line and bulletin board software that ranges in price from free up to about $500.
They serve a variety of beneficial and legal purposes, including the distribution of public domain and “shareware” software, electronic mail among individuals and as the media for discussion forums that can range from how to better use a particular kind of computer or software to bizarre fantasy role-playing games.
But they also can be used criminally to share methods and codes for illegally gaining access to government, corporate and educational computer systems and making fraudulent long-distance calls. They also can be used to distribute pornography electronically and to pirate commercial software.
Kapor and Godwin argued that legitimate bulletin board system operators are intimidated by the fear that their systems could be seized because someone over whom they had no control could use it for a criminal purpose.
They said computer systems shouldn’t be seized in such cases because their contents can be duplicated electronically and the copy used as evidence to prosecute the accused persons.
Prosecutors Ingraham and Thackeray disagreed, as did several others in the audience who addressed the issue, saying that although making such a copy might be technically feasible, there would be too many legal and practical difficulties in attempting to use the copy as evidence.
The prosecutors also argued against Kapor’s and Godwin’s suggestions that additional laws are needed to protect the free speech rights of persons who use computer bulletin boards. Ingraham said there is no need for such a constitutional amendment because “nobody in law enforcement believes that they (existing constitutional protections) do not already apply.”
What is needed, however, Thackeray said, is a change in the law to allow declaration of an “electronic emergency” giving judges the power to eliminate jurisdictional barriers that complicate investigation of telecommunications crimes.
It is not unusual for a bulletin board to be used by someone in another state, even another country. Break-ins of computer systems are often routed through a number of other interconnected computers in various states and nations to hide the culprit’s identity.
The afternoon ended without anyone changing their position but promised to fuel more discussion on the foundation’s own bulletin board forums.
If you want to add your views, you can call the foundation’s voice line at (617) 864-0665 to find out how to sign on.
Computer File welcomes readers’ comments but regrets that the author cannot respond individually to letters. Write to Richard O’Reilly, Computer File, Los Angeles Times, Times Mirror Square, Los Angeles, Calif. 90053.
